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State v. Mixton

Court of Appeals of Arizona, Second Division

July 29, 2019

The State of Arizona, Appellee,
William Mixton, Appellant.

          Appeal from the Superior Court in Pima County No. CR20162038001 The Honorable Sean E. Brearcliffe, Judge.

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Linley Wilson, Assistant Attorney General, Phoenix Counsel for Appellee

          Joel Feinman, Pima County Public Defender By Abigail Jensen, Assistant Public Defender, Tucson Counsel for Appellant

          Presiding Judge Eppich authored the opinion of the Court, in which Judge Eckerstrom concurred in part and dissented in part and Judge Espinosa concurred in part and dissented in part.


          EPPICH, Presiding Judge.

         ¶1 William Mixton appeals his convictions for twenty counts of sexual exploitation of a minor under fifteen years of age, arguing police violated his federal and state constitutional rights by obtaining, without a warrant, information from two service providers identifying him as the sender of certain incriminating internet messages. He contends the trial court erred in failing to suppress evidence obtained as a result of that warrantless acquisition of information. We conclude that, although the information was obtained in violation of article II, § 8 of the Arizona Constitution, the good-faith exception to the exclusionary rule applies. Accordingly, we affirm Mixton's convictions and sentences.

         Factual and Procedural Background

         ¶2 In March 2016, an undercover detective investigating child exploitation placed an ad on a popular internet advertising forum targeting offenders interested in child pornography and incest, inviting those interested to contact him to join a group chat on a messaging application known for minimal verification of its users' identities. Several people responded to the ad, including one who provided his messaging application screen name "tabooin520" and asked to be added to the group chat. In the days after the detective added this user to the group, the user posted several images and videos depicting child pornography. When the detective sent a person-to-person message to the user thanking him for the pictures, the user responded by sending the detective additional images of child pornography in personal messages.

         ¶3 At the detective's request, federal agents participating in the investigation served a federal administrative subpoena on the messaging application provider to obtain the user's IP address.[1] Once the provider furnished the IP address, the detective was able to determine the user's internet service provider (ISP) by using publicly available information. Again, federal agents served a subpoena, and as a result, the ISP supplied the street address of the user to whom the IP address was assigned. Based on this information, the detective obtained a search warrant for that address.

         ¶4 Mixton lived in a room at that address. During execution of the search warrant, police seized from Mixton's room a cell phone, an external hard drive, a laptop computer, and a desktop computer, each of which contained numerous images and videos containing child pornography. In some of the folders containing these images and videos, police also found images of Mixton, and images the detective had sent to the user via the messaging application.

         ¶5 Based on images found on the devices in Mixton's room, a grand jury indicted Mixton on charges including twenty counts of sexual exploitation of a minor under fifteen years of age. The trial court severed counts for other offenses, and after a four-day trial for sexual exploitation, a jury convicted Mixton on all twenty counts. For each count, the court imposed a seventeen-year sentence, all to be served consecutively. We have jurisdiction over Mixton's appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).

         Motion to Suppress

         ¶6 Before trial, Mixton moved to suppress both the subscriber information obtained via the administrative subpoenas and all evidence collected as a result of that information including the evidence obtained during the search of his home. He argued that both the Fourth Amendment and article II, § 8 of the Arizona Constitution protected his reasonable expectation of privacy in the subscriber information, prohibiting law enforcement from obtaining that information without a warrant or other court order. After brief oral argument, the trial court denied the motion, ruling that Mixton had no recognized privacy interest in the subscriber information.[2]

         ¶7 On appeal, Mixton reasserts his contention that both the Fourth Amendment and article II, § 8 protect the identifying information he transmitted to the service providers. We review de novo constitutional issues raised in a motion to suppress, considering only the evidence presented at the suppression hearing and viewing that evidence in the light most favorable to upholding the trial court's ruling. State v. Blakley, 226 Ariz. 25, ¶ 5 (App. 2010). Here, the parties did not present evidence at the motion hearing, however, arguing the motion on their filings. The relevant facts appear to be undisputed; we view them in the light most favorable to upholding the ruling. Cf. State v. Navarro, 241 Ariz. 19, n.1 (App. 2016) (considering undisputed facts to decide suppression motion where no hearing held).

         ¶8 As a preliminary matter, Mixton urges us to address the issue under article II, § 8 before we address it under the Fourth Amendment in order to "honor[] the intent of the [state constitution's] framers to provide an independent and primary organic law, and . . . ensure[] that the rights of Arizonans will not erode even when federal constitutional rights do." Clint Bolick, Vindicating the Arizona Constitution's Promise of Freedom, 44 Ariz. St. L.J. 505, 509 (2012). Our supreme court has held, however, that "decisions of the United States Supreme Court have great weight in interpreting those provisions of the state constitution which correspond to the federal provisions." Pool v. Superior Court, 139 Ariz. 98, 108 (1984). While worded differently, article II, § 8 corresponds to the Fourth Amendment; both exist to protect against unreasonable searches and seizures. See State v. Ault, 150 Ariz. 459, 463 (1986). Moreover, article II, § 8 "is of the same general effect and purpose as the Fourth Amendment, and, for that reason, decisions on the right of search under the latter are well in point on section 8." Malmin v. State, 30 Ariz. 258, 261 (1926). Very recently, our supreme court stated that "[t]he Arizona Constitution's protections under article 2, section 8 are generally coextensive with Fourth Amendment analysis." State v. Hernandez, 244 Ariz. 1, ¶ 23 (2018). Indeed, its interpretations of article II, § 8 have rarely departed from Fourth Amendment precedent, and never in a case that does not involve physical invasion of the home. See State v. Peltz, 242 Ariz. 23, n.3 (App. 2017). Therefore, while "we cannot and should not follow federal precedent blindly" in interpreting our state constitution, Pool, 139 Ariz. at 108, neither can we turn a blind eye to it. On the other hand, our independent interpretation of article II, § 8 would be of little assistance in analyzing the Fourth Amendment, an area of law in which decisions of our federal Supreme Court bind us.

         ¶9 For this reason, and because Mixton has also challenged his convictions under the Fourth Amendment, we analyze the issues here first under the Fourth Amendment. In doing so we follow the lead of our supreme court, which has taken this approach in deciding article II, § 8 challenges. See, e.g., Hernandez, 244 Ariz. 1, ¶¶ 11-23; State v. Bolt, 142 Ariz. 260, 263-65 (1984). We recognize our duty to independently interpret and give effect to our state constitution, however. See Pool, 139 Ariz. at 108. To the extent we find rights in article II, § 8 beyond those that have been found under the Fourth Amendment, we may always exert our state sovereignty and avoid federal review through a "clear and express statement that [our] decision rests on adequate and independent state grounds." Michigan v. Long, 463 U.S. 1032, 1042 n.7 (1983); see also Ault, 150 Ariz. at 466 ("We decide this case on independent state grounds."); Bolt, 142 Ariz. at 265 (similar).

         Fourth Amendment

         ¶10 The Fourth Amendment provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." "A 'search' under the Fourth Amendment occurs 'when an expectation of privacy that society is prepared to consider reasonable is infringed.'" State v. Welch, 236 Ariz. 308, ¶ 8 (App. 2014) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). Before police conduct a search that infringes upon a person's subjective and objectively reasonable expectation of privacy, police generally must obtain a warrant supported by probable cause. Carpenter v. United States, ___ U.S. ___, ___, 138 S.Ct. 2206, 2213 (2018). Evidence obtained in violation of this requirement may be subject to suppression, see Bolt, 142 Ariz. at 265-69, but only the person whose rights were violated may claim the violation, see State v. Jeffers, 135 Ariz. 404, 413 (1983); State v. Juarez, 203 Ariz. 441, ¶ 12 (App. 2002) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)).

         ¶11 In general, the Fourth Amendment does not protect information that a person reveals to a third party who then reveals it to the state, "even if the information is revealed [to the third party] on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." United States v. Miller, 425 U.S. 435, 443 (1976) (government's warrantless acquisition of customer's bank records held by bank did not violate Fourth Amendment); see also Smith v. Maryland, 442 U.S. 735, 744-45 (1979) (warrantless collection of subscriber's phone calls via "pen register" did not violate Fourth Amendment). Federal courts applying this principle have consistently found internet users to have no reasonable expectation of privacy in their IP addresses or in their subscriber information (name, street address, etc.) voluntarily conveyed to third-party service providers. See, e.g., United States v. Weast, 811 F.3d 743, 747-48 (5th Cir. 2016), cert. denied, ___ U.S. ___, 137 S.Ct. 126 (2016); United States v. Christie, 624 F.3d 558, 573-74 (3d Cir. 2010) ("Federal courts have uniformly held that 'subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation.'" (quoting United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir. 2008))), cert. denied, 562 U.S. 1236 (2011); Perrine, 518 F.3d at 1204. Thus, an internet user has no recognized Fourth Amendment privacy interest in his IP address or the personally identifying information he or she submitted to his or her ISP to subscribe to its service. The third-party doctrine does not allow the government to obtain the contents of communications from a third-party communication technology provider, however. See Katz v. United States, 389 U.S. 347, 348, 359 (1967) (striking down conviction based on warrantless surveillance of defendant's phone calls via electronic listening device); Smith, 442 U.S. at 741 ("[A] pen register differs significantly from the listening device employed in Katz, for pen registers do not acquire the contents of communications."). Recently, the United States Supreme Court declined to extend the third-party doctrine established by Miller and Smith to "detailed, encyclopedic, and effortlessly compiled" cell-site location records, but characterized its decision as a "narrow one" and expressly left existing application of Miller and Smith undisturbed. Carpenter, 138 S.Ct. at 2216-17, 2220.

         ¶12 Mixton nonetheless contends that he had a reasonable expectation of privacy in his identity because his conduct shows a calculated effort to maintain anonymity: He used a messaging application known for collecting little information from its users and communicated in that application using a pseudonym. But while a person must have a subjective expectation of privacy in order to invoke Fourth Amendment protection, it must also be "one that society is prepared to recognize as 'reasonable'" for the Fourth Amendment to apply. Smith, 442 U.S. at 740 (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)). As explained above, Smith and the federal circuit cases following it have established that an internet user has no recognized Fourth Amendment privacy interest in his or her identity. And while Mixton points out that he only shared his subscriber information with the service providers, this presumably was also true in the many federal cases that have found no reasonable expectation in such subscriber information. See, e.g., Weast, 811 F.3d at 747-48; Christie, 624 F.3d at 573-74; Perrine, 518 F.3d at 1204. No reasonable expectation of privacy exists under the Fourth Amendment by virtue of this fact: The federal third-party doctrine has been applied even when information is shared with only one third party. See United States v. Caira, 833 F.3d 803, 806 (7th Cir. 2016). While Mixton notes that investigators obtained his IP address in addition to his identity, federal courts have not recognized a protected privacy interest in an IP address. See, e.g., Caira, 833 F.3d at 806-07; Weast, 811 F.3d at 747-48; Perrine, 518 F.3d at 1204-05. Finally, Mixton reminds us we are not bound to follow the federal circuit cases, see State v. Montano, 206 Ariz. 296, n.1 (2003), but we are bound by Smith, which dictated the result in those cases.[3]

         ¶13 Because Mixton had no federally recognized privacy interest in his subscriber information or IP address, law enforcement did not need a warrant under the Fourth Amendment to obtain that information from Mixton's service providers. The trial court did not err in denying Mixton's Fourth Amendment claim.

         Article II, § 8 of the Arizona Constitution

         ¶14 Article II, § 8 of the Arizona Constitution provides that "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." Although article II, § 8 "is of the same general effect and purpose as the Fourth Amendment to the Constitution of the United States," "[w]e have the right [to interpret] our own constitutional provisions as we think logical and proper, notwithstanding their analogy to the Federal Constitution and the federal decisions based on that Constitution." Turley v. State, 48 Ariz. 61, 70-71 (1936). Pursuant to article II, § 8's explicit mention of the home, Arizona courts have, on occasion, found protections from warrantless physical intrusions into a home not recognized in Fourth Amendment jurisprudence. See Ault, 150 Ariz. at 466 (declining "to extend the inevitable discovery doctrine into defendant's home . . . regardless of the position the United States Supreme Court would take on this issue"); Bolt, 142 Ariz. at 263-65 (declining to follow United States Supreme Court case involving warrantless entry of home to "secure" it until search warrant obtained).

         ¶15 While Arizona's appellate courts have never extended article II, § 8 beyond the Fourth Amendment outside the context of the home, see Peltz, 242 Ariz. 23, n.3, our supreme court "has never expressly held, based on considered analysis, that [article II, § 8's protections of "private affairs" are] coextensive with the United States Supreme Court's interpretation of Fourth Amendment protections," Hernandez, 244 Ariz. 1, ¶ 30 (Bolick, J., concurring). Consistent with our prerogative to independently interpret our constitution, see Pool, 139 Ariz. at 108, our supreme court has left open the possibility that article II, § 8 rights extend beyond those that have been found in the Fourth Amendment in circumstances other than warrantless physical intrusion into the home, see Hernandez, 244 Ariz. 1, ¶ 23 ("We are not persuaded that the scope of the Arizona Constitution's protections exceeds the Fourth Amendment's reach under the circumstances of this case." (emphasis added)).

         ¶16 No published opinions address the third-party doctrine under Arizona's Constitution.[4] We review de novo a matter of first impression regarding whether a particular expectation of privacy should be recognized under constitutional law. State v. Huerta, 223 Ariz. 424, ¶ 4 (App. 2010).

         ¶17 Mixton argues that because article II, § 8 explicitly grants protection to "private affairs" in addition to homes, its protection of private affairs must extend beyond the protections offered by the Fourth Amendment, as it does for homes. He urges us to follow Justice Bolick's view that article II, § 8's protection of "private affairs" must differ from the protection afforded by the Fourth Amendment because the language is different. See Hernandez, 244 Ariz. 1, ¶ 29 (Bolick, J., concurring) ("It is axiomatic, as a matter of constitutional or statutory interpretation, that where different language is used in different provisions, we must infer that a different meaning was intended." (citing Rochlin v. State, 112 Ariz. 171, 176 (1975))).

         ¶18 To determine whether a private affair has been disturbed, Mixton contends that we should focus on "the nature of the government's actions" rather than applying a reasonable-expectation-of-privacy test akin to that in Fourth Amendment jurisprudence. See State v. Campbell, 759 P.2d 1040, 1044 (Or. 1988) (rejecting reasonable-expectation-of-privacy test under Oregon Constitution's search-and-seizure provision). But as Mixton acknowledges, Arizona courts have long applied the reasonable-expectation-of-privacy test in analyzing the protections provided by both the Fourth Amendment and article II, § 8. See Juarez, 203 Ariz. 441, ¶ 16 (Arizona courts have "consistently" applied reasonable-expectation-of-privacy test in article II, § 8 challenges since 1980). That test is consistent with the term "private affairs," which we conclude refers to those affairs in which a person has a reasonable expectation of privacy. See also Webster's Third New Int'l Dictionary 35 (1971) (defining "affairs" as "commercial, professional, or personal business"). We therefore apply a reasonable-expectation-of-privacy test in analyzing the issue here under article II, § 8.[5]

         ¶19 Mixton next argues that internet users have a reasonable expectation of privacy in their identity when communicating using a pseudonym on the internet. Noting growing public concern about government's ability to collect information from technologies such as the internet that are an indispensable part of modern life, he urges us to join "[a] growing number of states [that] have declined to import the third-party doctrine into their state constitutional search-and-seizure provisions." Zanders v. State, 73 N.E.3d 178, 186 (Ind. 2017), cert. granted, judgment vacated on federal grounds, ___ U.S. ___, 138 S.Ct. 2702 (2018).

         ¶20 As mentioned above in our discussion of the Fourth Amendment, the federal third-party doctrine generally holds that a person has no reasonable expectation of privacy in information revealed to a third party, even "on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed." Miller, 425 U.S. at 443. The doctrine has its roots in a line of cases in which the Court ruled that defendants had no protected Fourth Amendment interest in their conversations with a false friend (either a government informant or agent), even when the false friend records the conversation or allows others to listen in without the defendant's consent. See id. (citing United States v. White, 401 U.S. 745, 751-52 (1971) (incriminating statements made in person to government informer, overheard by government agents informer allowed to eavesdrop in person and through electronic surveillance); Hoffa v. United States, 385 U.S. 293, 302 (1966) (incriminating statements made in person to government informer); and Lopez v. United States, 373 U.S. 427 (1963) (recording of defendant's conversation by person to whom defendant spoke)). In Miller, the Court ruled that a person had no reasonable expectation of privacy in their bank records held by their bank. Id. at 442. The Court found that what the government obtained, including the defendant's financial records and bank slips, were "not confidential communications," as the records "contain[ed] only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business." Id. The Court concluded that a bank customer, like a person whose confidence is betrayed by a false friend, "takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government." Id. at 443 (citing White, 401 U.S. at 751-52).

         ¶21 In Smith, the Court concluded that the suspect had no reasonable expectation of privacy in the phone numbers he dialed. 442 U.S. at 745-46. There, police, without obtaining a warrant, requested the phone company to install a "pen register" to record the phone numbers dialed on a suspect's phone. Id. at 737. The Court questioned whether phone users had even a subjective expectation of privacy in the phone numbers they dial:

[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must "convey" phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. In fact, pen registers and similar devices are routinely used by telephone companies "for the purposes of checking billing operations, detecting fraud and preventing violations of law." . . . Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. ...

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